COURT OF APPEAL, ACCRA
Date: 15 OCTOBER 1974
APALOO JA
NATURE OF PROCEEDINGS
APPEAL against the ruling of Koranteng-Addow J. wherein he ruled that the appellant, who was named as next-of-kin in a form filled in by a deceased contributor to a university superannuation scheme, was not beneficially entitled to take the superannuation benefits. The facts are sufficiently stated in the judgment of Apaloo J.A.
COUNSEL
L. B. Akainyah for the appellant.
Totoe for the respondent.
JUDGMENT OF APALOO JA
The question raised in this appeal, is within a very narrow compass. It is this: Does the sum of 05,000 which the Kumasi University of Science and Technology hold in respect of superannuation benefits for the account of the late Dr. Appiagyei-Danka enure for the benefit of his estate or is the appellant solely beneficially entitled to it? The deceased died intestate and did not make a gift inter vivos of this sum to the appellant. If she claims herself entitled to that sum, she must show by what title she came by it. The appellant founds herself squarely on section 14 of the Wills Act, 1971 (Act 360).
Now the facts. The appellant is the mother of the intestate. He was in his lifetime employed by the
Kumasi University of Science and Technology as a lecturer in agricultural chemistry. At the date of his death on 11
[p.285] of [1974] GLR 283
June 1972, he had risen to the post of senior lecturer. At the time of his employment, he was requested to join and did join the university superannuation scheme. He also, at the request of the university, filled a form which provided information about himself of a personal nature. That form was headed: “Particulars of Next-of-kin of College Employees and other relevant information (For file use).” It is to be noted that there is nothing on this form which relates it to the superannuation scheme. In the column “Name of next-of-kin” the deceased wrote: “Madam Beatrix Appiagyei.” This is admittedly the name of the appellant.
The present dispute arose because the appellant claimed that she was duly nominated by the deceased as the beneficiary of the sums due in the superannuation scheme and that by reason of section 14 of the Wills Act, 1971, that sum does not form part of the general estate of the deceased, but belongs to herself beneficially . The intestate’s wife took issue with the appellant on this. She claimed that there was no nomination within the meaning of section 14 of the Wills Act and that that sum formed part of the general estate of the deceased. That contention found favour with the learned trial judge, Koranteng-Addow J. who (in [1973] 2 G.L.R. 188 at p.190) concluded that:
“the very fact of a person’s name appearing in this type of nomination paper did not constitute him the beneficiary under the superannuation scheme. The sole aim is to assist the university authorities in tracing the members of family of a deceased participant.”
It is this conclusion that the appellant contests by this appeal. It was urged on her behalf that the learned judge “erred in holding that the superannuation forms part of the general estate of the deceased.” This according to counsel, is because the deceased had made a valid nomination of the appellant as his beneficiary under the scheme. Counsel referred to section 14 of the Wills Act, 1971, and submitted that inasmuch as the university took out a policy of insurance on the life of the deceased and the latter, in his lifetime, nominated the appellant who is a member of his family within the meaning of subsection (9) of section 14 of Act 360, she was entitled to the sum assured and that the judge should have so held. The issues thus raised for determination are two, namely, one of law and one of fact. The issue of law may be formulated in this way: Can a participant of the university superannuation scheme make a valid nomination of a beneficiary within the meaning of section 14 of the Wills Act, 1971? And the factual question is: Did the deceased make any such nomination in this case assuming that this was legally competent?
To answer the first question, one must attempt a determination of what section 14 (1) of the Wills Act, 1971, seeks to achieve. I think its object is to render unnecessary the specific disposal by will of insurance money to a family member if the assured took out that policy for the member’s benefit. The Act gives the assured opportunity to repent his bounty because he could revoke it by will. Section 14 (1) enacts, in as far as relevant, as follows:
[p.286] of [1974] GLR 283
. . where a person takes out a policy of life insurance on his life for a sum which is expressed on the face of the policy to be for the benefit of a member of his family then, unless the nomination of’ that member is expressly revoked by a will duly made in accordance with this Act or in any other manner approved by a contract of’ insurance, upon the death of the insured person, the sum assured shall not form part of his estate but shall, subject to the provisions of this section, be paid to the person as nominated.”
Having read and considered the superannuation scheme, I am inclined to think that its dominant purpose is to provide against the member’s own retirement and to ensure him a sort of nest-egg in his old age. If he should die before attaining retiring age, the scheme enables the university to pay over the sum assured in accordance with the assured’s testamentary disposition or to the persons entitled to succeed him on intestacy. In circumstances deemed by the university to be exceptional, the latter may pay such benefit to the member’s widow or children. That being the purport of the scheme, I should not hold that it shares the same object as section 14 (1) of the Wills Act, 1971. The scheme seems to be an endowment and retirement insurance whose basic features are described in volume 22 of Halsbury’s Laws of England (3rd ed.), p. 290 at para. 576 as follows:
“The essence of a contract by way of endowment insurance is that a specified sum becomes payable, not on the death of the insured, but on the arrival of a specified date, the insured being still alive; the contingency is the duration of life up to the specified date rather than the arrival of death … Commonly there is an amalgamation of endowment and strict life insurance in the same policy, so as to make the specified sum payable either on the specified date or on death before that date.”
One must however concede that although the superannuation scheme and the Social Security Decree, 1972 (N.R.C.D. 127), share an identity of object, it is possible under the latter to make a valid nomination of a survivor for the purpose of benefit. This is, however, made possible only by the enabling provision of section 41 of that legislation. The University of Science and Technology, Kumasi Act, 1961 (Act 80), confers no power on a participant of the university superannuation scheme to nominate a survivor for the purpose of receiving a benefit under the scheme. To say this is not to deny the obvious similarities between the superannuation scheme and the life assurance envisaged by section 14 (1) of the Wills Act, 1971. In both, a life is insured, in the former case, the insurance is made by the university which pays the lion’s share of the premium, in the latter case, the assured himself takes out the policy, in both cases benefits accrue on the termination of the life but while in the former case, the desired end is to provide for the assured himself and incidentally, his dependants in the event of his death, the latter’s goal is to confer a benefit on a member of the assured’s family as defined by the Act. This seems to me a difference of substance not of form.
[p.287] of [1974] GLR 283
The dissimilarity in goal is matched by the difference in form. A policy, to come within the ambit of section 14 (1) of the Wills Act, 1971, must be for a sum “expressed on the face of the policy to be for the benefit” of a designated family member. Under the university superannuation scheme inasmuch as the beneficiary of the scheme is the member, such a policy cannot, in the nature of things, be expressed to be for the benefit of anyone save the member on whose life the university took the policy. It should follow from this that any policies taken by the university cannot comply with the formal requirement of section 14 (1) of Act 360. It follows in my judgment, that, the university superannuation scheme differs both in intention and form from the insurance contemplated by the section in question. I must conclude from this that a participant under the superannuation scheme cannot make a valid nomination of a beneficiary within the meaning of section 14 of the Wills Act, 1971. The judge’s view (at p. 190) was that “The nomination in exhibit B is not the type of nomination contemplated by section 14 of the Wills Act, 1971 (Act 360).” I cannot bring myself to do other than concur with that view. I accordingly decide the question of law against the appellant.
In the view that I take of the issue of law, the factual question does not arise. But it was urged by counsel that on the facts, the deceased did intend to confer a benefit on his mother and did so and that the contrary holding “was against the weight of evidence.” There is hardly any evidential basis for the submission that it was the deceased’s wish that his mother should benefit solely from the superannuation scheme in the event of his demise. The only material on which this bold contention is based, is the fact that in filling in a form which requires his personal details for the university files, he had described his mother as his next-of-kin. But the form had no nexus of any sort with the superannuation scheme. There is nothing on the form which incorporates by reference any of the provisions of the scheme, nor is there anything which suggests remotely that at the date of filling in this form, the deceased’s attention was drawn to it. A consideration of all these matters leads me to think that a more likely object of the university in requesting the filling of this form is to enable the university authorities to trace the lecturer’s nearest relations in the event of an emergency. That is the learned judge’s appreciation of the matter. I agree with him. Like the judge below, I also think that the sum of money now in the hands of the Kumasi University of Science and Technology for the account of the late Dr. Appiagyei-Danka in respect of superannuation, enures for the benefit of his general estate and not solely for the appellant. I think therefore that this appeal fails and must be dismissed.
JUDGMENT OF ANNAN J.A.
I agree.
JUDGMENT OF FRANCOIS J.A.
I also agree.
DECISION
Appeal dismissed.
